Most folks who write on the Internet have been warned about using unlicensed photos. But how about unlicensed memes?
Memes are inside jokes, essentially, but the whole Internet is in on them. Though the word has been around a while, it’s now colloquially used to mean pictures, video, and more that communicate a thought or idea simply. Typically it’s an image or phrase that’s become so viral that it starts to evolve, and takes the web by storm. What was once just a picture of a duck gets superimposed with advice written in Impact font and becomes Actual Advice Mallard, a screenshot of a viral video becomes shorthand for an accusation of a lie, and a penguin in front of a blue-pinwheel background with funny text becomes Socially Awkward Penguin.
Unfortunately Socially Awkward Penguin is under copyright. So far, Getty Images has been successful in their quest to protect their copyright across the Internet. But if they hit up the wrong heavy-hitter, it could get awkward in the courts.
Internet memes have been around since the early Internet, but memes in their current iterations, took off on the Internet around the late 2000s. Socially Awkward Penguin got its start when someone on 4chan took a goofy Adelie penguin from a National Geographic image, stuck it in front of the blue background, and added text indicating an awkward situation anyone could relate to. In the seven years since, memes (and the penguin in particular) have reached into every corner of the Internet. Even brands have hopped on the bandwagon.
Which is partially why Getty is getting antsy: That’s a major market that’s grown off of one picture. And so far, most blogs—as Getty has all but exclusively gone after smaller blogs using the image—have complied, paid up, and deleted the meme from their site, rather than get involved in costly litigation. But if someone took the bait and fought the issue in court, courts would be forced to grapple with a complicated question: What happens to ownership when things go viral?
“Internet memes are a little bit trickier,” said Derek Allen, an attorney who wrote on Duets Blog said in an LXBN TV interview at the time. “Obviously “Keyboard Cat” and Nyan Cat are very specific things, but some of these other memes are just a picture of a kid, at a rave…the text is different every time. So maybe you could use that picture, with your own text for your company, then maybe you’re ok.”
And so far, nobody’s really sussed it out quite yet. Similar to the 1990s, when sampling started to become the new thing for rappers and copyright lawyers, the Internet loves to pick and choose content without really figuring out who owns it. But unlike music sampling, everybody can (and apparently does) get in on the meme sharing fun—even corporations, as The Fader writes:
Part of the reason the originators of viral content are stripped from their labor is because they don’t technically own their production. Twitter does, Vine does, Snapchat does, and the list goes on. Intangible things like slang and styles of dance are not considered valuable, except when they’re produced by large entities willing and able to invest in trademarking them.
Dana Nelson, founder of D.F. Nelson PLLC, a New York City firm specializing in copyright and music law, says outmoded intellectual property law needs updating for the digital age. “Copyright law and intellectual property in America does not follow the creative production of artists. Rather, it protects the interests of companies,” she says. “I think it is now harder to distinguish a non-commercial (fair) use from a commercial one.” Whereas Meechie’s dance videos are considered a threat to record companies’ bottom line, his cultural production—and Kayla Newman’s “on fleek,” too—is treated as ripe for the taking by those same companies.
Were the issue to go to court, it almost seems unlikely that it would be a clear win for National Geographic and Getty. The meme is, after all, based on one part of the picture (which at this point is a virtual unknown compared to its socially awkward counterpart), and has transformed into a piece wholly its own. It’s definitely transformed, and it’s not as if anyone stands to make a whole lot out a meme posted to a non-commercial blog, or a Reddit post following a bad day. As one University of Pennsylvania law review found:
Each factor, it seems, has its champions and its detractors, though most courts and commentators assume that, in practice, the outcome of the section 107 test relies primarily on the outcome of the fourth factor, which calls for an economic analysis of the effect of the defendant’s use on the market for the plaintiffs work.
…If a court finds that the defendant’s use is “transformative” or “noncommercial” under factor one, and that factor one therefore favors the defendant, a court will also likely find that the defendant’s use, precisely because it is transformative or noncommercial, will not adversely affect the market for the plaintiff’s work.
For now, memes remain relatively untested. But once someone decides to pick the wrong fight, things could get even more awkward.